Judgement reserved in challenge to Ineos fracking protest injunction

190306 Ineos injunction appeal DoD

Three law lords have reserved their decision in an appeal against the protest injunction granted to the fracking company, Ineos.

Lord Justice Andrew Longmore described the challenge brought by two anti-fracking campaigners as “not an entirely easy case”. He said a written judgement would be handed down but gave no indication of when this would be.

The one-and-a-half day case at the Royal Courts of Justice in London this week had hear from legal teams for the fashion designer, Joe Corre, and campaigner, Joe Boyd.

They had challenged the injunction, granted to Ineos by Mr Justice Morgan in December 2017, on three grounds:

  • It should not have been made against “persons unknown”
  • Mr Justice Morgan had not properly assessed the evidence provided by Ineos
  • The restrictions on protests against Ineos suppliers were unlawful

Yesterday the court heard arguments for Mr Corre and Mr Boyd. DrillOrDrop report

They claimed the injunction was unprecedented, wide-ranging, vague in its definitions and based on exaggerated and untested evidence. It breached the human rights of opponents of fracking and was having a chilling effect on protest, the court heard.

Today, Alan Maclean QC, for Ineos, continued his defence of the injunction, which has since been used as template by four other shale gas companies.

On “persons unknown”, Mr Maclean said

“there have been many cases where the courts have been asked to grant, and have granted, injunctions against persons unknown.

“As it happens, many of these involved injunctions against various kinds of protesters.”

The injunction defined “persons unknown” by a range of actions taken against Ineos. Mr Maclean said:

“I consider that the position has now been reached that the procedure adopted by [Ineos] is entirely in line with the authorities and contains no error of law.

He said Mr Justice Morgan had to be satisfied that an injunction against “persons unknown” was appropriate but he said:

“this does not require proof that it is impossible to name any individuals. That suggestion is unrealistic and inconsistent with the authorities, and the Judge was right to reject it”.

Mr Maclean argued that the case brought by South Cambridgeshire District Council against Gammell established the right to use “persons unknown” in injunction cases.

In her closing submissions today, Stephanie Harrison QC, barrister for Mr Corre, said Ineos could not make the case for using the different categories of “persons unknown”. She said:

“There are no persons to fall within any of the categories.

“No persons have yet sought to direct activity against Ineos.

“There is only the possibility that some will do so in the future.”

She said cases relied on as precedents by Ineos involved real people or applied other aspects of the law.

In the Ineos case, she said:

“[The persons unknown] are unidentified because they do not yet exist. That is the fundamental problem that Ineos has.

“You cannot have proceedings or a properly constituted claim without any defendants.”

Under the current Ineos injunction, she said:

“You are binding people who are not before the courts and have no opportunity to defend their rights”.

The court had heard about an autistic woman living near a prospective Ineos site who was now unable to walk her dog on a footpath in case it ran off and she breached the injunction by chasing after it.

Mr Maclean had criticised this example. But Ms Harrison said the woman could become a defendant in a legal action.

“It is not good enough to say that Ineos would not pursue a legal action against her. If she fell within the definition she is a defendant in the High Court.”

Ms Harrison said there was also a problem that definitions of the various groups of “persons unknown” and the definitions of the outlawed activities were not the same.

She said:

“You could become a defendant to proceedings without being in breach of the injunction order.”

Disputed evidence

At the original injunction hearing, Ineos submitted hundreds of pages of social media and online material which it said showed there was an imminent threat to its sites and premises.

Mr Maclean said this included 16 witness statements, a core bundle comprising five lever arch folders, 23 lever arch files of exhibits, and a considerable amount of video evidence.

He said Mr Justice Morgan had concluded that the evidence “made it plain” that, in the absence of injunctions, protesters would seek to take direct action against Ineos.

Mr Maclean said:

“These conclusions are not impeachable on appeal, even if permission had been given to seek to impugn them.”

He rejected arguments by Mr Boyd that the evidence that supported the injunctions was “limited and contentious”.

He also rejected the suggestion that Mr Justice Morgan had not, as required, assessed the evidence in the light of the Human Rights Act. He also referred to the judge’s ruling which said “there was no real dispute before me as to the substance of the evidence”.

Heather Williams QC, for Mr Boyd, said in her closing submissions that there had been no assessment by the judge. She said Mr Boyd and Mr Corre did dispute the Ineos evidence of protest both against the company and other onshore oil and gas firms.

Supply chain

One section of the injunction prohibits “persons unknown” from combining together to commit one or more of a list of specified actions against contractors, with the intention of damaging Ineos.

The actions include: criminal damage; obstructing the highway or access to it; blocking the highway intending to cause inconvenience and delay; slow walking with the object of slowing down vehicles and intending to cause inconvenience and delay; and climbing onto or interfering with vehicles.

The campaigners said the judge should have taken account of the human rights to freedom of speech and assembly before deciding whether obstruction of the highway was unreasonable. He should also not have decided that all instances of slow walking were unreasonable.

But Mr Maclean described the judge’s ruling as “entirely orthodox, consistent with well-established authority and did not give rise to any error of law”.

Mr Maclean said:

“This protesting is not just protesting, making their point in the way that people marched against the Poll Tax. It is directly aimed at stopping my clients [Ineos] going about their business.

“They are slow walking specifically to damage and stop my clients going about their lawful business.”

Ms Williams described the supply chain injunction as “a novel use of a civil wrong or tort in an inappropriate context”. She said:

“Mr Justice Morgan did not evaluate whether it was necessary or proportionate”.

She said there was no damage that actions against the supply chain would damage Ineos.

She said the company was trying to transplant an economic tort into protest law. Until the ruling by Mr Justice Morgan it had not been used over protests. But since the Ineos injunction it had been used in injunctions by four other companies.

Background to the case

Report from Day 1 of the injunction appeal

2 replies »

  1. Thank you for the report Ruth, this deferment because these injunctions are “not an entirely easy case” indicates a significant change to the tacit acceptance that prevailed prior to this point.

    Perhaps that puts into doubt that these “NIMBY” Injunctions are not so cut and dried after all.

    Interesting times ahead.

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